1. The decision of the Responsible Authority is affirmed.
2. In permit application tp0900/1246 no permit is granted.

Mr T O'Dwyer, Senior Waterways and Floodplain Engineer

The subdivision of a lot having an area of 2036 m2 into two lots having areas of 1033 m2 and 1003 m2 respectively. The existing dwelling on the site would be contained within proposed lot 1, and the subdivision would enable a further dwelling to be constructed on lot 2.

Application under Section 77of the Planning and Environment Act 1987.

Clause 44.04 Land Subject to Inundation Overlay

Clause 32.05-4 A permit is required to subdivide land.

Clause 44.03-2 A permit is required to subdivide land (conditions apply).

Clause 44.04-2 A permit is required to subdivide land

The review site is located on the south east corner of Lawford Street and Tinkler Street, Barmah.

The site has a regular configuration with a frontage to Lawford Street of 20.18 m, a depth of 100.89 m, and an area of 2036 m2. A dwelling is located on the site, toward the site's Lawford Street frontage. The balance of the lot is vacant.

The site forms part of the Barmah township. Surrounding development is residential. Lawford Street is a fully constructed road, while Tinkler Street is formed but unsealed.

1. Omega Land Systems applied to the Council for a permit to subdivide land at 19 Lawford Street, Barmah into two lots. The application was referred to the Goulbourn Broken Catchment Management Authority which is a referral authority under Section 55 of the Act, with respect to applications made under the Floodway Overlay.
2. The referral authority objected to the application on the following grounds.

The proposal is not consistent with the Victorian Planning Provisions Practice Notes- Applying for a Planning Permit under the Flood Provisions.

It would result in danger to life, health and safety of occupants.

It would increase demand on the community infrastructure and emergency services, and in community recovery services.

1. The Council refused the application as it is required to do on the grounds nominated by the referral authority.
2. The permit applicant has sought a review of the Council's decision.
3. During the course of the hearing, I drew the parties attention to the provisions of the Floodway Overlay relating to applications to subdivide land. Clause 44.03-2 states:

A permit is required to subdivide land. A permit may only be granted to subdivide land if the following apply:

• The subdivision does not create any new lots, which are entirely within this overlay. This does not apply if the subdivision creates a lot, which by agreement between the owner and the relevant floodplain management authority, is to be transferred to an authority for a public purpose.
• The subdivision is the resubdivision of existing lots and the number of lots is not increased, unless a local floodplain development plan incorporated into this scheme specifically provides otherwise.

1. I advised the parties that Clause 44.03-2 appears to prohibit the grant of a permit for a subdivision if the subdivision is the resubdivision of existing lots and the number of lots is increased as a result of that subdivision.
2. The parties requested the opportunity to make further submissions on the interpretation of Clause 44.03-2. I agreed to provide that opportunity and an Order to that effect was dated 25 November, 2010.
3. One submission on this matter was received from Omega Land Systems on behalf of the permit applicant.
4. The matter of whether the subdivision is prohibited is a question of law. I have referred this question of law to a legal member, being Member Code. Member Code's determination is attached to these reasons[1]. It is sufficient here to record that he has determined that the development in the permit application is not prohibited under clause 44.03-2 of the Moira Planning Scheme.
5. I have proceeded therefore to decide this application on its merits.
6. I have concluded that the decision of the responsible authority should be affirmed and no permit should issue.
7. My reasons are set out below.

1. The issues in dispute in this dispute are relatively confined. The application has been refused on the basis of an objection to the application from the Goulbourn Broken Catchment Management Authority (GBCMA) and on grounds relating specifically to the flood provisions of the planning scheme affecting the site.
2. The Council did not refuse the application on additional grounds. The Council acknowledged that the subdivision is supported by the zoning of the land and those aspects of the policy framework which encourage urban development to be contained within existing settlements and urban zones, the orderly development of towns and the provision of a diversity of housing stock[2]. The Council submits however that in reaching a decision on this application, these provisions of the scheme must be balanced against the provisions of the overlay controls and those policies which seek to avoid intensifying the impacts of flooding through inappropriately located uses and developments[3]
3. The applicant submits that all relevant provisions of the planning scheme must be considered and a decision balancing those provisions arrived at.
4. I agree with those submissions. I note that at Clause 10.04 of the planning scheme under the heading Integrated Decision Making it is stated that Planning authorities and responsible authorities should endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations.
5. Mr Hill submits that the granting of a permit for a subdivision creating one additional lot in the township would allow the land to be used and developed for residential purposes in accordance with the zoning of the land.
6. Mr Hill submits that the proposal would not lead to residents of any subsequent dwelling constructed on the site being exposed to unacceptable level of risk from flood events, and that the purpose of both the LSIO and RFO would not be compromised as a result of the grant of a permit.
7. Mr Hill submits that the construction of a dwelling on the proposed rear lot could be undertaken with the finished floor levels at 300 mm above the 1 in 100 year declared floor event which would be consistent with the pattern of recent development in the township. This would also ensure that there would be no obstruction of flow capacity over the site. Similarly reasonable access to the site from Tinkler Street would continue to be available in a 1 in 100 year declared floor event, because the inundation of Tinkler Street would be less than the 0.5 m limit typically relied on in floodway management plans[4]
8. Mr Hill's submission is predicated on the submission that the GBCMA's objection to the proposal and application of the LSIO and RFO are based on inaccurate and outdated data.
9. I agree with Mr Hill's submission that the imposition of the LSIO and RFO cannot be regarded as a prohibition on subdivision of affected land. Each case must be determined on the circumstances applying in that case. The position of the GBCMA does appear to contain an element of outright opposition to subdivision of land affected by the LSIO and RFO, and this would represent an incorrect application of the planning scheme's provisions. The discretion exists to grant a permit for the subdivision of this land and, as I have stated above all relevant planning scheme provisions must be considered and balanced in arriving at a decision.
10. The objective of Clause 13.02-1 makes it very clear that the protection of life, property and community infrastructure from flood hazard is a key consideration when determining applications on land where management of flood plains is necessary.
11. I have concluded that a permit should not issue for this proposal primarily on the basis that an intensification of land use and development will inevitably result from the granting of a permit for the proposed subdivision. While I acknowledge Mr Hill's submission that a dwelling could be constructed on the proposed rear lot with finished floor levels above the 1 in 100 year declared floor event, in line with other dwellings in Barmah (including the existing dwelling on the site), that submission largely misses the point. In circumstances where a township is affected by an LSIO and RFO, a balanced application of all the planning scheme provisions would enable land in the town to be developed in accordance with the zone purpose, but the number of lots which are capable of being developed ought to be restricted in order to limit the number of people and properties exposed to the flood hazard. While the creation of one additional lot in a township may not represent a significant increase in the number of people and properties exposed to that flood hazard, it is the cumulative effect of each additional lot created which ultimately leads to an unacceptable outcome. Care must be exercised not to lose sight of the cumulative effect of such subdivisions when considering applications for individual proposals.
12. The submission that the application of the LSIO and RFO is based on inaccurate and outdated data is not a matter about which I am able to make findings. These are matters which may be relevant to the consideration of planning scheme amendments which impose the zoning and overlay controls contained within the planning scheme. However, in accordance with the principles established by the Supreme Court in Unger v City of Malvern VR 259 (1979), I must assess the application on the basis of the planning scheme controls which apply to the land at the time that a decision is made. It is not my role to enquire into the Council's decision making about the application of zones and overlays or the adoption of policies. I must apply the planning scheme as I find it.
13. In any event I am satisfied that there is at least a reasonable basis for the application of the LSIO and the RFO. This is not a case in which it has been demonstrated that the planning scheme controls are anomalous or have been applied arbitrarily, a situation which may justify a different conclusion being arrived at. Mr O'Dwyer referred me to the report prepared by Sinclair Knight Merz (SKM) Assessment of Flood Risk to the Township of Barmah and Preliminary Flood Mitigation Review (August 2008) and to other survey data, and I was advised that the mapping of the LSIO and RFO has been based on this data. The boundaries of the RFO represents flooding depths at 500 mm or greater. The data also establishes that the extent of flooding is significantly widespread over several kilometres.
14. Mr O'Dwyer acknowledged that spot levels provided by the applicant indicate that the delineation of the RFO boundary could be moved "somewhat south", but that the proposed building envelope would still be within the RFO.
15. It is also of some significance that under the provisions of both the LSIO and the RFO, any application must be consistent with any Local Floodplain Development Plan. Under the RFO, if a Local Floodplain Development Plan for the area has not been incorporated into the scheme, an application must be accompanied by a flood risk report to the satisfaction of the responsible authority[5].
16. A Local Floodplain Development Plan has not been incorporated into the Moira Planning Scheme. Mr O'Dwyer advised me that a draft plan taking the form of plans which have been incorporated into other planning schemes, has been prepared, but a planning scheme amendment to incorporate it into the Moira Planning Scheme has not been exhibited.
17. Many of the issues raised by Mr Hill in this case may be more appropriately addressed through a subsequent planning scheme amendment process for the incorporation of a Local Floodplain Development Plan.
18. The failure of the applicant to submit a flood risk report as required under the RFO, is a significant deficiency in this application. Apart from the fact that it is a mandatory requirement of the RFO, the absence of a plan has had the effect of preventing the Council and the GBCMA from considering relevant information which is required to form part of a flood risk report in determining their decision on this application. It is perhaps surprising that neither the Council nor the GBCMA requested the applicant to submit such a report as part of the application. Nevertheless the applicant has not prepared the report and the material presented by Mr Hill in his submission to me, is not a substitute for a properly documented flood risk report as contemplated by the planning scheme.
19. The absence of a flood risk report is a further factor which has influenced my decision that this proposal does not achieve an acceptable outcome having regard to the applicable policies and provisions of the planning scheme.

1. On the question of law raised in this proceeding, I decide as follows -
   • The development in the permit application is not prohibited under clause 44.03-2 of the Moira Planning Scheme.

1. By order dated 25 November 2010, Member Hewet invited written submissions from the parties about whether the subdivision in the permit application was prohibited under clause 44.03-2 of the Moira Planning Scheme (the scheme). On 11 January 2011, the Applicant made written submissions.
2. On 16 February 2011, the question was identified as a question of law or mixed fact and law and referred to me as a legal member to determine.
3. The proposal is to subdivide a single lot known as Crown Allotment 1 Section 11 Township of Barmah Parish of Barmah, located on the south-east corner of Lawford Street and Tinkler Street in Barmah, into two lots of 1,033 sq m and 1,003 sq m. The whole of the land is zoned Residential 1 under the scheme. The land is subject to two overlays, being the Land Subject to Inundation Overlay (LSIO) and the Floodway Overlay (FO). The boundary between lots 1 and 2 does not exactly follow the boundary between the LSIO and FO. Lot 1 is substantially within the LSIO and lot 2 is substantially in the FO.
4. Clause 44.03-2 of the scheme applies to the FO and provides -

A permit is required to subdivide land. A permit may only be granted to subdivide land if the following apply:

1. The subdivision does not create any new lots, which are entirely within this overlay. This does not apply if the subdivision creates a lot, which by agreement between the owner and the relevant floodplain management authority, is to be transferred to an authority for a public purpose.
2. The subdivision is the resubdivision of existing lots and the number of lots is not increased, unless a local floodplain development plan incorporated into this scheme specifically provides otherwise.

1. The first limb provides, in effect, that a permit may not be granted if either lot 1 or lot 2 are entirely within the FO. This limb raises a question of fact rather than law. To the extent it makes the overall question one of mixed fact and law, neither lot is entirely within the FO and the subdivision is not prohibited by the first limb.
2. The second limb provides the subdivision is prohibited if it is a 'resubdivision of existing lots' and the number of lots is increased. The exception relating to a floodplain management plan does not apply in this case.
3. Does the expression 'resubdivision of existing lots' apply to the subdivision of one lot, as in this case?
4. I do not consider it does. 'Resubdivision' is not a term defined in the scheme, Planning and Environment Act 1987 or the Subdivision Act 1988. A resubdivision of land is no different in legal terms to a subdivision of land. The phrase 'existing lots' is, in my view, intended to only refer to more than one lot. The second limb is intended to apply to circumstances in which land comprising two or more lots is subdivided to create new lots with different boundaries or areas.
5. The requirement that the number of lots not be increased means that a subdivision in the FO would be prohibited if two lots are subdivided to create three or more new lots, or three lots are subdivided to create four or more new lots, and so on.
6. If the second limb was intended to apply to the subdivision of one lot then any subdivision will increase the number of lots and would be prohibited. This would have the effect of preventing the operation of the first limb if new lots created by the subdivision of one lot are not entirely within the FO. In other words, the second limb would operate in a way incompatible with the first limb. To put it another way, the application of the second limb to the subdivision of one lot is contrary to the provision as a whole, in context.
7. In a scheme, words in the plural include the singular, unless the contrary intention appears.[6] The drafting of this provision implies there is a contrary intention.
8. The conclusion I have reached is consistent with common practice relating to similar provisions for smaller lot subdivisions in some non-urban zones.[7]
9. In Lowrie v Campaspe SC,[8] the Tribunal considered a proposal to subdivide one lot into two lots in the FO. While the matter was not argued, I observe that the Tribunal proceeded on the basis that the subdivision was not prohibited under clause 44.03-2.
10. In conclusion, the proposal is not prohibited by clause 44.03-2 of the scheme.

[2] See in particular Clauses 11, 16.01-4, 16.01-5, 21.04.

[4] Mr Hill relied and referred to floodway management plans which have been incorporated into other planning schemes, notably the Campaspe Planning Scheme.

[5] Clause 44.03-3. A Flood Risk Report must consider a range of nominated factors.

[6] Interpretation of Legislation Act 1984 s 37(d).

[7] For example, in clause 35.07 for the Farming Zone, a permit may be granted to create a lot with an area less than the specified minimum area if '... the subdivision is the re-subdivision of existing lots and the number of lots is not increased. ...'.

[8] [2008] VCAT 1395 (Baird SM). I also observe that the predecessor provision to clause 44.03-2 was considered by the Tribunal in Milne v Greater Shepparton SC [1990] VCAT 227. While the provision was drafted differently and the meaning of that provision was not in dispute, the Tribunal also proceeded on the basis that the subdivision of one lot into two lots was not prohibited by the provision.